The Governor cannot act 'in his discretion' in granting sanction for prosecution of the Ministers under Section 197, Cr. P. C.

( 1 ) THESE are two Letters Patent Appeals by the M. P. Special Police Establishment challengng the order of the single Bench by which the sanction for prosecution of the two Ministers under Section 197, Cr. P. C. accorded by the Governor for the offence punishable under Section 120-B, I. P. C. has been quashed.

( 2 ) BISAHU Ram Yadav and Rajendra Kumar Singh were Ministers in the Government of Madhya Pradesh. A complaint was made to the Lokayukta against them for releasing 7. 5 acresw of land illegally to its earlier owners which had been acquired by the Indore Development Authority from them. The case was registered on 31-3-1998 and investigated by the Special Police Establishment (SPE) constituted under the M. P. Special Police Establishment Act, 1947 and functioning under the Superintendence of the Lokayukta. After investigation the SPE was of the view that there is sufficient ground for prosecution of the two Ministers under Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 and also for the offence of "criminal conspiracy" punishable under Section 120-B, I. P. C. The SPE sought sanction of the State Government under Section 197, Cr. P. C. in respect of the offence under Section 120-B, I. P. C. By this time the two Ministers had resigned and ceased to occupy that position. The question of sanction for prosecution was considered by the Council of Ministers in its meeting on 3-9-1998 and the sanction was declined by a resolution giving detailed reasons. The ground for refusing the sanction was that in its opinion there was no prima facie case against them. It was stated in the resolution :"on going through the total material collected through investigation there is not an iota of material available against both the Ministers from which it could be faintly inferred that they entered into criminal conspiracy with anyone. Totality of the material that has been collected and which has been referred to above do not indicate prima facie establishment of ingredients of Section 120-B, I. P. C. "the question relating to grant of sanction was then considered by the Governor keeping in view the decision of the Cabinet and he expressed his view in the impugned order dated 23-9-1998 : "having perused the available documents and after caerful scrutiny of the evidence putforth by the SPE I am satisfied that there is prima facie case for prosecution of Shri B. R. Yadav and Shri Rajendra Singh, ex-ministers of the Government of Madhya Pradesh, for offence under Section 120-B, I. P. C. " He accorded the sanction under Section 197, Cr. P. C.

( 3 ) THE two Ministers filed two separate writ petitions under Articles 226 and 227 of the Constitution assailing the order of the Governor. The Single Bench after considering the arguments of the eminent counsel appearng from both the sides held that the sanction for the prosecution of the Ministers is not a function which could be exercised by the Governor "in his discretion" within the meaning of the words used in Article 163 of the Constitution and therefore he could not accord the sanction and thereby act contrary to the decision of the Council of Ministers. It has been observed that the principle of bias cannot be applied against the entire Council of Ministers and the doctrine of necessity cannot be invoked on the facts of the case to enable the Governor to act in his discretion in this matter.

( 4 ) IN these appeals it has been argued by the learned counsel for the appellant that Article 163 of the Constitution fully empowers the Governor to act in his discretion in granting the sanction for the prosecution of the Ministers and the decision of the Governor in his discretion in this respect is final and its validity cannot be called in question on the ground that he ought or ought not to have acted in his discretion. It is submitted that the function of grant of sanction for prosecution of a 'minister' falls within the exception in the latter part